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A big day in Australian dumping and trade remedies reform – the Brumby Review released and new legislation passed

Following a remarkably speedy and thorough process, the Federal Government has now released the Report ("Report") of the Brumby Review into Australia's anti-dumping arrangements ("Review"). The Review has been part of a wide-ranging reform of Australia's anti-dumping and countervailing system following the Report of the Productivity Commission and increased concern that a combination of the strong Australian dollar, surplus production overseas and the reduction of other barriers to trade would lead to an increase in unfair trading by overseas exporters to the detriment of Australian producers and manufacturers. Indeed, of recent time there has been a significant increase in anti-dumping and countervailing action in Australia so that it now ranks second in the number of such actions brought in the last 12 months only behind Brazil and some way in advance of the United States.

The specific focus of the Review was whether Australia should create a new agency to handle the anti-dumping and countervailing actions and what steps needed to be taken to enhance administration of the Australian regime and increase confidence and knowledge of the availability and efficiency of the regime. I was involved in the Review by way of meetings with Mr Brumby and his Secretariat, making various submissions to the Review attending a number of stakeholder forums and providing commentary as to issues associated with the Review. By media release dated 27 November 2012, the Minister for Home Affairs ("Minister") released the Report by the Review and committed to Government to "respond swiftly". Among 13 recommendations, the main 3 recommendations were as follows:

that a new anti-dumping authority, agency or commission be established under legislation;

that the new agency be principally located in a major city, close to a high concentration of Australian Industry; and

that an immediate increase in resources be made available to establish a new agency and ensure a timely resolution of underlying issues.

I can say that while I have yet to read the Report in detail, I endorse these recommendations and hope that the action by Government is, indeed, swift and effective.

As readers would be aware, the numbers of trade remedy actions in Australia are increasing all the time including the recent re-institution of a previously terminated investigation and the announcement on 26 November 2012 of a new investigation into alleged subsidies relating to the export of various types of galvanised steel when an anti-dumping action in relation to such products had already been initiated.

Anti-dumping legislation finally passes Federal Parliament

As readers would be aware, another aspect of the reform was the introduction of several Bills representing "tranches" of the Government's anti-dumping legislation. By media release of 27 November 2012, the Minister also announced the passage of the bill which he called "the biggest reform to our anti-dumping system in a decade".

Again, according to the media release, the legislation reforms:

establish a new appeals process for anti-dumping matters;

establish the International Trade Remedies Forum in legislation;

remove the need for a separate review of anti-dumping measures and continuation inquiries to be run in close proximity to each other;

allow different forms of interim dumping duty to be applied from those currently used;

remove the current limitation to the inclusion of profit when calculating the 'normal value' of a good in its country of origin, in certain circumstances;

better aligns Australia's anti-dumping and countervailing system with those of our WTO counterparts;

strengthens the provisions that deal with non-cooperation in sampling exercises in investigations, continuation inquiries or reviews; and

allows Australian industry, or the Minister, to bring about an anti-circumvention inquiry.

These changes will significantly alter Australian dumping practice and law. In particular, the anti-circumvention changes will have an impact on those parties who change trading practices to try to escape measures which are imposed.

I will keep you informed of developments and will deliver new seminars as soon as I can!